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Groundwater and the Future of
Texas Water:
Recreational Organizations in an Age of
Water Scarcity
By: Charles Porter, Assistant Professor of History
St. Edward’s University(All Rights Reserved)
www.charlesporter.comCopyright Charles R. Porter, Jr. - ALL RIGHTS
RESERVED
The Big Picture on Texas Water
• We focus too much on supply and sources.
• We focus too little on use of water and “used” water.• We focus too little on conservation of water.
• Water is simply too cheap at the tap.
• Water may force us to choose between urban and rural lifestyles
• Without water, the local ad valorem tax base declines with
significant consequences.
• Municipal and other government credit ratings impacted by water
availability.
• There is never been such a thing as normal rainfall in Texas – norm
is drought or “soon-to-be-back-in-drought.”
Texas is growing and will continue to grow. But without well-thought out water policy, will our potential be limited.
Copyright Charles R. Porter, Jr. - ALL RIGHTS RESERVED
“Water doesn’t run downhill . . . it runs towards money.”
Dr. David Weber, SMU, 1976
“. . . but at the core, the fundamental issue is that in our state there simply is not enough firm-yield water to support the existing population and growth that is already occurring.”
Kirk Holland, P.G., General Manager,Barton Springs Edwards Aquifer Conservation District
Copyright Charles R. Porter, Jr. - ALL RIGHTS RESERVED
Droughts and Deluges in San Antonio
1700 - 1900
Copyright Charles R. Porter, Jr. - ALL RIGHTS RESERVED
A History of the Early Development of Texas Water Rights
Copyright Charles R. Porter, Jr. - ALL RIGHTS RESERVED
The Questions for Our Time
Who Owns Water? Whose Rights Should Prevail?
Copyright Charles R. Porter, Jr. - ALL RIGHTS RESERVED
To Determine Ownership Look at:
Three Geological Containers
Natural Surface Water
Diffused Surface Water
Groundwater
Copyright Charles R. Porter, Jr. - ALL RIGHTS RESERVED
Keys to Understanding
Texas Water Law
Classifications of water into 3 “geological containers”
(Remember: Irrigation uses 60 - 70% of our
water)
Copyright Charles R. Porter, Jr. - ALL RIGHTS RESERVED
Glossary
• Acre-foot – volume of water needed to cover 1 acre to a
depth of 1 foot = 325,851 gallons.
• Appropriative right – the right to impound, divert, store,
take, or use a specific amount of state water acquired by
law. Appropriator – person making beneficial lawful
use under the statutes.
• Appurtenant – belonging to, appended to or annexed to.
• Certificate of Adjudication – evidence of water right.
• Correlative right – rights that are co-equal, relate to one
another, so that one owner cannot take more than their
share.
• Conjunctive – joined together; combined (like all water)
Copyright Charles R. Porter, Jr. - ALL RIGHTS RESERVED
Glossary 2
Prior Appropriation – doctrine of surface
water usage in Texas. First in time, is first
in right.
Riparian - of or relating to or living or
located on the bank or a watercourse (as a
river or stream) or sometimes a lake; one
that lives or has property on the bank of a
river.Copyright Charles R. Porter, Jr. - ALL RIGHTS
RESERVED
Texas Water Law is Linked to Sources and
Uses of Water • Use 1 – Irrigation Source 1 - Surface Water
• Use 2 - Irrigation Source 2 – Groundwater
• Use 3 – Household/Livestock Source 3 – Any source
• Use 4 – Industrial Source 4 – Surface Water
• Use 5 - Industrial Source 5 – Groundwater
Basis of most past disputes was irrigation use of surface water – generally resolved by the Water Adjudication Act of 1967.
Modern dispute centers on irrigation use of groundwater. All states but Texas regulate groundwater use and no others have the “rule of capture” to block their regulation efforts.
The conflict we will face in the future is the tension between urban and rural use of groundwater. The cities are now and will continue to demand and fight for groundwater to the detriment of rural owners.
Copyright Charles R. Porter, Jr. - ALL RIGHTS RESERVED
1. Natural Surface Water TCEQ, River Authorities, Watermasters
All natural surface water found in watercourses is owned by the state - held in trust for the people.
It includes the ordinary flow, underflow and tides of every flowing natural watercourse (has as definite bed and banks) in the state. Storm water and floodwater found in natural lakes, rivers, and streams - also state water.
It is allocated to the most senior rights during scarcity – prior appropriation.
Copyright Charles R. Porter, Jr. - ALL RIGHTS RESERVED
2. Diffused Surface WaterTCEQ
Water that does not flow in a defined watercourse, but flows across the surface of the land in a variant and without a pattern is termed diffused surface water.
Generally, rain runoff, water left in upland areas after a flood recedes may also be diffused surface water. Texas courts have ruled - diffused surface water belongs to the landowner until it enters a natural watercourse – then it becomes state water. Tanks, springs that do not create streams are private water.
Copyright Charles R. Porter, Jr. - ALL RIGHTS RESERVED
3. GroundwaterGroundwater Conservation Districts if One Exists
The water that is beneath the land surface and fills the pore spaces of rock and soil material and that supplies wells and springs.
Groundwater is private property per SB 332, 2011 session and Day McDaniel ruling Feb 24, 2012.
Not all areas of Texas have a GCD!Copyright Charles R. Porter, Jr. - ALL RIGHTS
RESERVED
Fort Stockton 1954
The Unintended Consequences of
Ranchers and Drought
Copyright Charles R. Porter, Jr. - ALL RIGHTS RESERVED
Observations on Comanche Springs
The best case in Texas to demonstrate:
1. the conjunctive aspects of all water sources;
2. the unintended consequences of the rule of capture;
and,
3. the age-old dilemma of how to balance the pursuit of individual interests with the “good” of the community.
Copyright Charles R. Porter, Jr. - ALL RIGHTS RESERVED
What does water ignore?
Political Boundaries.
Copyright Charles R. Porter, Jr. - ALL RIGHTS RESERVED
Groundwater Conservation DistrictsThe preferred method of groundwater management per Legislature.
1949 Legislature - 1951 first formed -
High Plains Underground Water
Conservation District No. 1.
99 GCD’s cover 173 counties – of 254 counties – 68%.
Areas without GCDs face a problem – the rule of
capture.
Many GCDs are woefully underfunded
Copyright Charles R. Porter, Jr. - ALL RIGHTS RESERVED
Groundwater Conservation Districts
1949 Authorized by the Legislature
1951 First – High Plains Underground Water Conservation
District No. 1
99 now – two awaiting confirmation by voters
Some areas do not have GCDs – a real problem
PGMAs can create GCDs via TCEQ
Copyright Charles R. Porter, Jr. - ALL RIGHTS RESERVED
Modeled available groundwater:
the amount of water that may be permitted by a district for beneficial use in accordance with the desired future condition of the aquifer
Total Pumping – Estimated Exempt Use
Copyright Charles R. Porter, Jr. - ALL RIGHTS RESERVED
Exempt Use
• Exempt uses of the aquifer include:
– rural domestic
– livestock
– oil and gas exploration
– any other uses specified in the rules or enabling legislation of a district
• TWDB estimates include only domestic and livestock exempt use through 2060
– Total exempt use for these categories based on current exempt estimates and projected rural population changes
– Exempt use divided into individual aquifers based on the percent of domestic and livestock wells completed into each aquifer in each county
• Districts may submit alternative estimates of exempt use for consideration
Copyright Charles R. Porter, Jr. - ALL RIGHTS RESERVED
Del Rio 2009
Mistake? Test? or Deliberate Disregard
for Rights and Deeds
Copyright Charles R. Porter, Jr. - ALL RIGHTS RESERVED
The Turbid but Crystal Clear Water
of San Felipe Springs
Copyright Charles R. Porter, Jr. - ALL RIGHTS RESERVED
Del Rio Case
City of Del Rio v. Samuel Colt Hamilton Trust
Must it be “captured” before it can be owned? If groundwater is a “vested” property right, then why is it not taxed like minerals?
Copyright Charles R. Porter, Jr. - ALL RIGHTS RESERVED
City of Del Rio, Appellant v. Clayton Sam Colt Hamilton Trust, Appellee, Court of Appeals of Texas, Fourth District, San Antonio:
• Decided in favor of the Trust at both the District and the Court of Appeals
• Texas Supreme Court – Petition for Review Denied on September 25, 2009, rehearing denied December 11, 2009, file sent to storage December 31, 2009
“The relevant facts have been stipulated to by both parties.. . . In 1997, the Trust sold 15 acres from the ranch’swestern border to the City of Del Rio . . . GrantorRESERVES unto Grantor, its successors, heirs andassigns forever all water rights associated with saidtract, however, Grantor may not use any portion of thesurface of said tract for exploring, drilling or producingsuch water.”
Karen Angelini, Justice
Copyright Charles R. Porter, Jr. - ALL RIGHTS RESERVED
First and foremost there is the real possibility that land could be purchased or leased or extracted for water that would be transported out of the region without any restrictions on the pumping of the aquifers. . . If this occurred, and the Rule of Capture still applied as it does today, it is entirely possible that the San Felipe Springs’ flows could be reduced by at east two-thirds of their current quantity.
Tom Knickerbocker, AICP May 11, 2009
[The Del Rio area - Val Verde and Terrell Counties - have no Groundwater
Conservation District for protection and fair allocation of groundwater resources.]
Copyright Charles R. Porter, Jr. - ALL RIGHTS RESERVED
Past - Recurring
The Bragg v. Edwards Aquifer
Authority Case
Copyright Charles R. Porter, Jr. - ALL RIGHTS RESERVED
THOMAS F.LEERetired District Judge
May 7, 2010
Re: Glenn and JoLynn Bragg v. Edwards Aquifer Authority;Cause No. 06-11-18170-CV in the 38th District Court ofMedina County, Texas
Copyright Charles R. Porter, Jr. - ALL RIGHTS RESERVED
A “cat” case –it’s bound to be out of its nine lives.
Glenn and Jo Lynn Bragg v. EAA
Enter Retired District Judge Thomas Lee, Hondo, Texas – May 7, 2010
finding –
I believe that this is as much about the taking away of a lifestyle as it is about the decrease in the value of land. The Braggs invested their lives, labor and money in a good family farm . . . That life plan has been undermined, and their investment severely devalued.
Compensation: $134,918.40 - difference between dry land farm and irrigated farm PLUS $5,500 an acre-foot for the water which was taken or $597,575 for a grand total of $732,493.40.
Copyright Charles R. Porter, Jr. - ALL RIGHTS RESERVED
A Never Ending Tale . . . NeverBragg v. EAA 2010 or “Pitch ‘til you win”
(if anything, they’re persistent)
Judge Lee’s recent ruling – shocking consequences if not
overturned.
Market Value Declarations:
• Irrigated farm v. non-irrigated $3,200 per acre premium
• Water at $5,500 per acre-foot
• Most recent pleadings ask for $7,500 per acre-foot
Above all else – his use of language – it should scare everyone, including landowners.Copyright Charles R. Porter, Jr. - ALL RIGHTS
RESERVED
Consequences TBD
Edward’s Aquifer Authority v. Burrell Day and Joseph McDaniel
Texas Supreme Court Case 08-0964
Copyright Charles R. Porter, Jr. - ALL RIGHTS RESERVED
Von Ormy, TexasHome of the Jalapeno Parade and Festival
Day and McDaniel request 700 acre-feet of water per year;
permit issued for 14 acre-feet per year by EAA . . .
Big Questions - Maybe for Our Time in Texas:
Is groundwater not in production a “vested” property right?
Did this act of the EAA constitute a “taking” therefore requiring just compensation to Day and McDaniel?
Copyright Charles R. Porter, Jr. - ALL RIGHTS RESERVED
McDaniel and Day v. Edwards Aquifer Authority
• As so often happens, a case with a confusing and “bad” set of facts• Request for 700 acre-feet of water per year by McDaniel and Day
• Permit issued for 14 acre-feet per year by EAA
• Main Question(s)– Is groundwater not in production a “vested” property right? Did this act of EAA constitute a “taking” therefore requiring just compensation to McDaniel and Day?
• Outlying Question – As the water from the well flowed into a tank
and then overflowed from the tank, did it flow in a “channel” therefore changing the nature of its ownership to state-owned
water?
• Porter’s Real Concern – How does a landowner prove, in a court of
law, “historical use” of water from an irrigation well or any other?
Case pending in Texas Supreme Court . . .
Copyright Charles R. Porter, Jr. - ALL RIGHTS RESERVED
Let’s apply Judge Lee’s finding to Day McDaniel:
$3,200 per acre X appx. 382 acres = $1,222,400(irrigated farm versus dryland farm)
$5,500 per acre-foot on 686 acre-feet = $3,773,000(value of an acre-foot of water)
($7,500 per a-ft = $5,145,000) + $1,222,400 = $6,367,400.
Grand Total Compensation ?
$4,995,400 or $13,076/acreCopyright Charles R. Porter, Jr. - ALL RIGHTS
RESERVED
El Paso Water Utilities Public Service Board
The value of El Paso’s held interests in groundwater rights is $100,000,000. Do they own the groundwater rights in-place?
Amicus brief (letter) filed Feb 11, 2010:
“Groundwater in-place is a recognized, severable estate in real
property, even when not in production. [Del Rio case seems, yet
again, to confirm this statement.]
The estate in groundwater, like oil and gas, is subject to reasonable
police power regulations of certain authorized agencies.
Reasonable regulation of subterranean estates in real property does not
in itself diminish the nature, value, or rights of those estates or give
right to takings liability.”
Copyright Charles R. Porter, Jr. - ALL RIGHTS RESERVED
50 Acre-foot tanks (387,918 bbl) at $ .42 to $ .80/bbl =
$162,926 to $310,334
Copyright Charles R. Porter, Jr. - ALL RIGHTS RESERVED
Urban or Rural ways of life?
Which do we value the most?
Copyright Charles R. Porter, Jr. - ALL RIGHTS RESERVED
Any Good News, Professor Porter?
Desalination plant in
El Paso is successful –27.5 millions/day
Texas has vast
brackish groundwater
resources plus the
Gulf of Mexico
Copyright Charles R. Porter, Jr. - ALL RIGHTS RESERVED
Here Come the Feds!
• EPA
• Fish and
Wildlife
• US/Mexico
Treaties
• Endangered
Species Act
• Federal Court
Rulings
Copyright Charles R. Porter, Jr. - ALL RIGHTS RESERVED
Key Links
• www.tceq.state.tx.us/Texas Commission on Environmental Quality – surface
water regulator; information on groundwater
• www.twdb.state.tx.us/Texas Water Development Board – information on
groundwater; 2012 State Water Plan
• www.texasgroundwater.org/Texas Alliance of Groundwater Districts - trade
association of GCD’s – information on member
districts
Copyright Charles R. Porter, Jr. - ALL RIGHTS RESERVED
New Publications - Porter
Sharing the Common Pool: Water Rights in the Everyday Lives of Texans –
Texas A & M University Press, Summer, 2013
“The History of W. A. East v. Houston and Texas Central Railway Company, 1904: Establishment of the Rule of
Capture in Texas Water Law or ‘He Who Has the Biggest Pump Gets the Water’” East Texas Historical Journal 50th
Anniversary Edition, Vol. 2, 2012
East Texas Historical Association, PO Box 6223
Stephen F. Austin State University, Nacogdoches, TX 75962-
6223 - $7.95 per copy
Copyright Charles R. Porter, Jr. - ALL RIGHTS RESERVED